New rules governing the behaviour of lawyers, with an emphasis on tackling bullying and harassment, will come into force from 1 July.

The amended rules clarify the standards of behaviour expected of lawyers when engaging with clients and colleagues.

“Bullying, discrimination, racial or sexual harassment and other unacceptable conduct has no place in any profession,” says New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati.

“Changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) were part of the recommendations by the Law Society’s Independent Working Group chaired by Dame Silvia Cartwright. Implementing these changes is the most significant regulatory step available to the Law Society to tackle the behaviour highlighted by the Legal Workplace Environment Survey in 2018.”

The amended Rules include clearer definitions of bullying, discrimination, harassment, including racial and sexual harassment, and other unacceptable conduct. There are new reporting requirements for notifying this conduct to the Law Society to ensure that there is an appropriate regulatory response.

Each law practice will need to have effective policies in place to protect staff and clients and to have a process for investigating allegations of unacceptable conduct. In addition, each practice will need to nominate a designated lawyer to report annually to the Law Society on any investigations undertaken by their law practice.

This emphasises the responsibility of each lawyer and law practice to deal with and report unacceptable conduct, rather than individual lawyers having to come forward.

“Ahead of the final Rules being approved by the Minister of Justice earlier this year, widespread consultation took place with the profession,” says Ms Epati.

“I’m confident that these changes have the support of the profession.

“Everyone has an individual part to play so the public can have trust and confidence in the legal profession.

“While these Rules are one way the Law Society can bring about change, real and long-lasting change will only take place when everyone takes responsibility. That may be showing up to support a colleague, calling out inappropriate behaviour or helping to build a supportive, non-discriminatory environment within your legal workplace.”

Draft guidance to support lawyers to understand their obligations under the new Rules will be released in early May for consultation. An online webinar for all lawyers will be held on 3 May 2021. Registrations are open through the NZLS CLE Ltd website.  

Questions and Answers

How will the Rules contribute to better protection for employees in legal workplaces?
The Rules outline clear expectations of law practices to protect all employees. They also require all law practices to have policies and systems in place to prevent and protect staff from unacceptable conduct, including procedures to investigate complaints. Law practices must have a designated lawyer who will report annually to the Law Society on investigations undertaken by their law practice.

How will these changes bring about workplace culture change?
Clearer conduct obligations, clearer reporting obligations for law practices and closer regulation of legal workplaces will help to bring about the healthy, safe, respectful and inclusive workplaces that we all want to see. We consulted widely on the rules changes, and many legal workplaces have been doing their own work in this area already. We’re optimistic that there is wide support for the changes.

What are the new reporting requirements?
There are a number of new reporting requirements. One of the biggest changes is the introduction of a new obligation that law practices will be required to notify the Law Society within 14 days if a lawyer is issued a written warning or dismissed for bullying, discrimination or harassment. A law practice will also have to report if a lawyer leaves before an investigation is completed.

Law practices will also need to nominate a designated lawyer who will be required to report on an annual basis about investigations undertaken by the law practice.

When will the rules be released?
The rules were gazetted by the Parliamentary Counsel Office on Thursday 1 April. They can be viewed here. Draft guidance on meeting the obligations of the rule changes will be released for consultation in early May 2021.

Why has it taken so long to introduce these Rules?
We had initially wanted changes to the Lawyers and Conveyancers Act 2006 to tackle bullying and harassment. We worked closely with the Government to explore options to change the regulatory framework. However, we were told this was not possible at this time.

We then had to change tack – to investigate what we could do to strengthen our powers within the existing framework. We looked at the one area where we could make change without legislative amendment, and the rules and regulations that applied to lawyers both in New Zealand and overseas. We sought advice from regulatory and ethics experts.

The changes that we consulted on in 2020 were informed by this advice, as well as the work and recommendations of the Law Society’s Independent Regulatory Working Group, chaired by Dame Silvia Cartwright, the 2018 Workplace Environment Survey, and the concerns and experiences of many within the legal community. While all this has taken time, the changes that come into force from 1 July 2021 are as robust as we could make them within the existing regulatory framework.

Do the new rules and definitions apply to in-house lawyers?
Yes, they do apply to in-house lawyers. However, in-house lawyers are not required to have a “designated lawyer” as this only applies to law practices.

Are the Rules Changes connected to the Independent Review that the Law Society is also carrying out?
The Independent Review has a broader scope than the Rules amendments and includes areas where legislative change may be required. The Independent Review will cover:

• how unacceptable conduct is prevented and addressed
• whether the Law Society’s representative functions should be separated from all or some of regulatory functions
• how complaints are made and responded to, including issues relating to transparency
• which legal services are regulated and by whom

The Review will also consider optimal organisational and governance arrangements for supporting the delivery of regulatory and representative functions.

The Review will potentially recommend changes to the New Zealand Law Society constitution, the Lawyers and Conveyancers Act 2006, and associated rules and regulations, as appropriate.